[Filed May 19, 2021, 9:59 a.m.]

Preproposal statement of inquiry was filed as WSR 21-02-082.

Title of Rule and Other Identifying Information: 2021 North of Falcon coastal commercial salmon seasons. The department is considering amendments to WAC 220-354-250 Willapa Bay salmon fall fishery, and 220-354-290 Grays Harbor salmon fall fishery.

Hearing Location(s): On June 22, 2021, at 9:00 a.m., Zoom webinar. Register for this webinar https://us02web.zoom.us/webinar/register/WN_VaVjG8BOSq2sxdVAwPocHQ. After registering, you will receive a confirmation email containing information about joining the webinar.

Date of Intended Adoption: June 30, 2021.

Submit Written Comments to: 2021 North of Falcon – Coastal Commercial Fisheries Rule Making [contact agency for link], P.O. Box 43152, Olympia, WA 98501, email 24111@PublicInput.com, fax 360-902-2155, phone transcription 855-925-2801, project code 9711, by June 22, 2021.

Assistance for Persons with Disabilities: Title VI/ADA coordinator, phone 360-902-2349, TTY 711, TTY 360-902-2207, email Title6@dfw.wa.gov, https://wdfw.wa.gov/accessibility/requests-accommodation, by June 22, 2021.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules were developed through the annual North of Falcon salmon season setting process, which began in January 2021, and provide the season schedule for the 2021 fall commercial salmon gillnet fisheries in Willapa Bay and Grays Harbor.

These proposed rules regulate the commercial fisheries in Willapa Bay and Grays Harbor and are part of a comprehensive rule making package to implement the new 2021-22 salmon seasons for Washington state, developed through the broader North of Falcon process pursuant to the fish and wildlife commission's North of Falcon Policy C-3608 for 2019-2023. As such, while these rules regulate only commercial fisheries, the seasons specified in these proposed rules are part of implementing Willapa Bay-wide commercial and recreational fisheries in a coordinated manner pursuant to the Willapa Bay Salmon Management Policy C-3622. As such, the proposed commercial fishery for 2021-22 is structured in a manner intended to consider and provide both commercial and recreational fishing opportunities in Willapa Bay and Grays Harbor, while ensuring conservation requirements and management objectives in federal and state laws and regulations, state/tribal harvest management agreements, and fish and wildlife commission policies are met.

Even though drafted as amendments to preceding rules, these new amendments function as a coordinated and unitary fishery package for the 2021-22 fishery season, and thus substantively replace prior years' fisheries in Willapa Bay and Grays Harbor. Comments should be considered and provided with that understanding.

The intent of this rule-making package, once adopted, is to replace and supersede the language in WAC 220-354-250 for the Willapa Bay salmon fall fishery and WAC 220-354-290 for the Grays Harbor salmon fall fishery in their entirety. The Washington department of fish and wildlife (WDFW) is proposing specific revisions to these rules to describe the seasons and dates for these fisheries for 2021, however, all of the provisions encompassed within WAC 220-354-250 and 220-354-290 are available for public review and comment, and WDFW will consider all public comments received on this rule making.

Reasons Supporting Proposal: The proposed rules were developed through the annual North of Falcon salmon season setting process, which is an extensive stakeholder engagement process to develop and analyze various season options for recreational, commercial, and tribal fisheries for the current year. It is named "North of Falcon" as it includes setting the salmon seasons for the area north of Cape Falcon, Oregon, which is located at 45 degrees N. latitude.

The North of Falcon process typically begins in January and consists of government-to-government meetings involving the National Marine Fisheries Service (NMFS), treaty tribes, and WDFW representatives. Separate meetings are held with stakeholders—both at a statewide and regional level—to review preseason run size forecasts, NMFS guidance relative to allowable impacts for species listed under the Endangered Species Act (ESA), which includes salmon, but other protected species as well, such as southern resident killer whales.

Ocean fishery seasons are developed through the Pacific Fishery Management Council process, which is concurrent with and part of the broader North of Falcon process, with meetings in early March and early April. Ocean fishery options are also analyzed and considered in light of potential ESA-listed species impacts and state/tribal harvest agreements and are also reviewed for consistency with the Pacific Salmon Treaty.

Stakeholder meetings specific to the Willapa Bay and Grays Harbor fisheries were held in February, March, and April. The comprehensive North of Falcon meeting schedule and the meeting agendas, handouts, and audio recordings of the public meetings are available on WDFW's website at https://wdfw.wa.gov/fishing/management/north-falcon/public-meetings.

Even though the governor has amended the "Stay Home, Stay Healthy" Proclamation, the prohibition on gatherings with anyone outside of an individual's household members and the social distancing requirements remain in effect. As such, WDFW anticipates that those requirements are likely to remain in place through the time of scheduled public hearing on this rule making; therefore, we have indicated that the hearing will occur via webinar.

Instructions regarding how the public may participate in the public hearing webinar will be posted on the agency's website at https://wdfw.wa.gov/fishing/management/north-falcon as soon as they become available.

Members of the public who would like to submit written comments online may do so at 2021 North of Falcon – Coastal Commercial Fisheries Rule Making [contact agency for link].

Statutory Authority for Adoption: RCW 77.04.012, 77.04.020, 77.04.055, and 77.12.047.

Statute Being Implemented: RCW 77.04.012, 77.04.020, 77.04.055, 77.12.045, and 77.12.047.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: WDFW, governmental.

Name of Agency Personnel Responsible for Drafting: Barbara McClellan or Kim Figlar-Barnes, 48 Devonshire Road, Montesano, WA 98563, 360-249-1213 or 360-249-4628; Implementation: Kyle Adicks, 1111 Washington Street S.E., Olympia, WA 98501, 360-902-2664; and Enforcement: Chief Steve Bear, 1111 Washington Street S.E., Olympia, WA 98501, 360-902-2373.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(4). This chapter does not apply to the adoption of a rule if an agency is able to demonstrate that the proposed rule does not affect small businesses.

Explanation of exemptions: The department is exempt from the requirements of chapter 19.85 RCW because, while WDFW considers commercial fishers to be a "small business," the commercial fishing rules proposed for 2021-22 do not affect these small businesses by imposing new direct costs of regulatory compliance. These rule changes clarify dates for anticipated open periods and areas for full-fleet and limited-participation salmon fisheries, and legal gear requirements for those fisheries. There are no new anticipated professional services required to comply. Based on the department's analysis, the proposed rules do not require any new or additional equipment, supplies, labor, or administrative costs.

Specific to WAC 220-354-250 for the Willapa Bay salmon fall fishery, in the past, WDFW has produced a small business economic impact statement (SBEIS) to address new gear restrictions in the fishery that likely resulted in small businesses incurring new direct regulatory compliance costs (e.g., purchase of new tangle nets not previously required). However, we believe that an SBEIS is not necessary for this rule making as the gear restrictions in the proposed rule have not changed since they went into effect in 2016 and this proposed rule does not impose any new costs on small businesses.

AMENDATORY SECTION(Amending WSR 20-14-051, filed 6/25/20, effective 7/26/20)

WAC 220-354-250Willapa Bay salmon fall fishery.

From August 16 through December 31 of each year, it is unlawful to fish for salmon in Willapa Bay for commercial purposes or to possess salmon taken from those waters for commercial purposes, except that:

Fishing periods:

(1) Gillnet gear may be used to fish for coho salmon, chum salmon, and Chinook salmon:

Area	Time	Date(s)	Maximum Mesh Size
((2U	6:00 a.m. through 6:00 p.m.	9/8		4.25"
2N	6:00 a.m. through 6:00 p.m.	9/9		4.25"
2T	6:00 a.m. through 6:00 p.m.	9/11		4.25"
2N, 2M, 2T, 2U	6:00 a.m. through 6:00 p.m.	9/14, 9/17		6.5"
2N, 2M, 2T, 2U	6:00 a.m. through 6:00 p.m.	9/21, 9/24		6.5"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/28, 10/1		6.5"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	10/5, 10/8		6.5"
2N, 2M, 2U	7:00 a.m. through 7:00 p.m.	10/12		6.5"
2N, 2M	7:00 a.m. through 7:00 p.m.	10/15		6.5"))
2N	6:00 a.m. through 6:00 p.m.	8/20		4.25"
2N, 2M	6:00 a.m. through 6:00 p.m.	8/27		4.25"
2N, 2M	6:00 a.m. through 6:00 p.m.	9/3		4.25"
2N, 2M	6:00 a.m. through 6:00 p.m.	9/10		4.25"
2N	7:00 a.m. through 7:00 p.m.	9/12, 9/14		4.25"
2M	7:00 a.m. through 7:00 p.m.	9/14		4.25"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/16		4.25"
2N, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/18		4.25"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/21, 9/24		6.5"
2N, 2T, 2U, 2R	7:00 a.m. through 7:00 p.m.	9/22		6.5"
2N, 2T	7:00 a.m. through 7:00 p.m.	9/25		6.5"
2N, 2M, 2U	7:00 a.m. through 7:00 p.m.	9/28, 10/1		6.5"
2N, 2R, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/29		6.5"
2T	7:00 a.m. through 7:00 p.m.	10/1		6.5"
2N, 2U	7:00 a.m. through 7:00 p.m.	10/2		6.5"
2N, 2M, 2R, 2T, 2U	7:00 a.m. through 7:00 p.m.	10/5		6.5"
2N, 2M, 2U	7:00 a.m. through 7:00 p.m.	10/7		6.5"
2N, 2M, 2R, 2T, 2U	7:00 a.m. through 7:00 p.m.	10/12		6.5"
2N, 2T, 2U	7:00 a.m. through 7:00 p.m.	10/14		6.5"
2N, 2M, 2R, 2T, 2U	7:00 a.m. through 7:00 p.m.	10/19		6.5"
2N, 2T, 2U	7:00 a.m. through 7:00 p.m.	11/1		6.5"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	11/8		6.5"
2N, 2M, 2U	7:00 a.m. through 7:00 p.m.	11/15		6.5"

Gear:

(2) Gillnet gear restrictions - All areas:

(a) Drift gillnet gear only. It is unlawful to use set net gear.

(b) It is permissible to have on-board a commercial vessel more than one net, provided the nets are of a mesh size that is legal for the fishery, and the length of any one net does not exceed one thousand five hundred feet in length.

(c) It is unlawful to use a gillnet to fish for salmon if the lead line weighs more than two pounds per fathom of net as measured on the cork line.

(d) It is permissible to have a gillnet with a lead line weighing more than two pounds per fathom aboard a vessel when the vessel is fishing in or transiting through Willapa Bay, provided the net is properly stored. A properly stored net is defined as a net on a drum that is fully covered by a tarp (canvas or plastic) and bound with a minimum of ten revolutions of rope that is 3/8 (0.375) inches or greater.

(e) From 12:01 a.m. ((September 8))August 20 through 11:59 p.m. ((October))November 15, ((2020))2021: Mesh size must not exceed six and one-half inches stretched, except mesh size must not exceed four and one-quarter inches stretched in Area ((2U))2N on ((September 8))August 20, 27, September 3, 10, 12, 14, 16, and 18, Area ((2N))2M on August 27, September ((9))3, 10, 14, and 16, and Areas 2T and 2U on September ((11, 2020))16 and 18, 2021.

Other:

(3) Recovery boxes and soak time limits described in this section are required from 12:01 a.m. ((September 8))August 20 through 11:59 p.m. ((October))November 15, ((2020))2021:

(a) Each boat must have two operable recovery boxes or one box with two chambers on board when fishing in Willapa Bay Areas 2M, 2N, 2R, 2T, and 2U.

(i) Each box and chamber must be operating during any time the net is being retrieved or picked. The flow in the recovery box must be a minimum of 16 gallons per minute in each chamber of the box, not to exceed 20 gallons per minute.

(ii) Each chamber of the recovery box must meet the following dimensions as measured from within the box:

(A) The inside length measurement must be at or within 39-1/2 inches to 48 inches;

(B) The inside width measurements must be at or within 8 to 10 inches; and

(iii) Each chamber of the recovery box must include a water inlet hole between 3/4 inch and 1 inch in diameter, centered horizontally across the door or wall of the chamber and 1-3/4 inches from the floor of the chamber. Each chamber of the recovery box must include a water outlet hole opposite the inflow that is at least 1-1/2 inches in diameter. The center of the outlet hole must be located a minimum of 12 inches above the floor of the box or chamber. The fisher must demonstrate to department employees, fish and wildlife enforcement officers, or other peace officers, upon request, that the pumping system is delivering the proper volume of fresh river/bay water into each chamber.

(b) From 12:01 a.m. ((September 8))August 20 through 11:59 p.m. ((October))November 15, ((2020))2021, all steelhead and all wild (unmarked) Chinook must be placed in an operating recovery box, which meets the requirements in (a) of this subsection prior to being released to the river/bay as set forth in (c) of this subsection.

(c) All fish placed in recovery boxes must remain until they are not lethargic and/or not bleeding and must be released to the river/bay prior to landing or docking.

(d) Soak time must not exceed 45 minutes. Soak time is defined as the time elapsed from when the first of the gillnet web is deployed into the water until the gillnet web is fully retrieved from the water.

(4) Quick reporting is required for wholesale dealers and fishers retailing their catch under a "limited fish seller endorsement." According to WAC 220-352-320, reports must be submitted by 10:00 a.m. on the day after the purchase date, unless otherwise specified in a voluntary electronic fish receiving ticket reporting agreement (see WAC 220-352-035(3)).

(5) Retention prohibitions:

(a) All green and white sturgeon and all steelhead, except as provided in subsection (3) of this section, must be handled with care to minimize injury to the fish and must be released immediately to the river/bay.

(b) Retention of any species other than coho, Chinook, or chum salmon is prohibited.

(c) From 12:01 a.m. ((September 8))August 20 through 11:59 p.m. ((October))November 15, ((2020))2021, retention of any species other than coho salmon, hatchery Chinook salmon marked by a healed scar at the site of the adipose fin, or chum salmon is prohibited.

(6) Report all encounters of green sturgeon, white sturgeon, and steelhead, (your name, date of encounter, and number of species encountered) to the quick reporting office via phone at #866-791-1280, fax at #360-249-1229, or email at harborfishtickets@dfw.wa.gov. Fishers may have wholesale dealers use the "buyer only" portion of the fish ticket and have encounters included with each day's quick reporting.

(7) Do not remove tags from white sturgeon. Please obtain available information from tags without removing tags. Submit tag information to the Washington Department of Fish and Wildlife, 48 Devonshire Rd., Montesano, WA 98563.

(8) Those waters of Area 2T, north of a line from Toke Point channel marker 3 easterly through Willapa Harbor channel marker 13 (green), then northeasterly to the power transmission pole located at 46°43.1907'N, 123°50.83134'W are closed from 12:01 a.m. September ((8))16, ((2020))2021, through 11:59 p.m., September 30, ((2020))2021.

(9) It is unlawful to fish with gillnet gear in Areas 2M, 2N, 2R, 2T, and 2U unless the vessel operator has attended a "Fish Friendly" best fishing practices workshop and has in their possession while fishing a department-issued certification card.

(10) Fishers must take department observers, if requested by department staff, when participating in these openings. Fishers also must provide notice of intent to participate by contacting quick reporting by phone, fax or email, listed in subsection (6) of this section. Notice of intent must be given prior to 5:00 p.m. on August ((31, 2020))6, 2021.

AMENDATORY SECTION(Amending WSR 20-14-051, filed 6/25/20, effective 7/26/20)

WAC 220-354-290Grays Harbor salmon fall fishery.

From August 16 through December 31 of each year, it is unlawful to fish for salmon in Grays Harbor for commercial purposes or to possess salmon taken from those waters for commercial purposes, except that:

Fishing periods:

(1) Gillnet gear may be used to fish for Chinook, coho, and chum salmon, and shad as provided in this section and in the times and area identified in the chart below.

Time:	Areas:
((7:00 a.m. through 7:00 p.m. October 21;	Area 2A and Area 2D
7:00 a.m. through 7:00 p.m. October 26;
7:00 a.m. through 7:00 p.m. October 27;
AND
7:00 a.m. through 7:00 p.m. October 28.))
7:00 a.m. through 7:00 p.m. October 25;	Area 2A and Area 2D
7:00 a.m. through 7:00 p.m. October 26;
7:00 a.m. through 7:00 p.m. October 27;
Noon through 11:59 p.m. November 2;
AND
7:00 a.m. through 7:00 p.m. November 3;
AND
Noon October 17 through noon October 20;	Area 2C
AND
6:00 a.m. October 24 through 6:00 a.m. October 26.

Gear:

(2) Gillnet gear restrictions - All areas:

(a) It is permissible to have on board a commercial vessel more than one net, provided that the length of any one net does not exceed one thousand five hundred feet in length. Nets not specifically authorized for use in this fishery may be aboard the vessel if properly stored. A properly stored net is defined as a net on a drum that is fully covered by a tarp (canvas or plastic) and bound with a minimum of ten revolutions of rope that is 3/8 (0.375) inches in diameter or greater.

(b) Areas 2A and 2D from October 1 through November 30: Gillnet gear only.

(i) Drift gillnet gear only. It is unlawful to use set net gear.

(ii) It is unlawful to utilize any object, except the vessel deploying the gear, to impede a gillnet or its attached line or float from drifting.

(iii) Mesh size must not exceed six and one-half inch maximum.

(iv) It is unlawful to use a gillnet to fish for salmon if the lead line weighs more than two pounds per fathom of net as measured on the cork line. It is permissible to have a gillnet with a lead line weighing more than two pounds per fathom aboard a vessel when the vessel is fishing in or transiting through Grays Harbor.

(i) Drift gillnet gear only. It is unlawful to use set net gear.

(ii) It is unlawful to utilize any object, except the vessel deploying the gear, to impede a gillnet or its attached line or float from drifting.

(iii) Mesh size must not exceed nine inches.

Other:

(3) Recovery boxes and soak times:

(a) Each boat must have two operable recovery boxes or one box with two chambers on board when fishing Areas 2A, 2C, and 2D.

(i) Each box and chamber must be operating during any time the net is being retrieved or picked and any time a fish is being held in accordance with (b) and (c) of this subsection. The flow in the recovery box must be a minimum of 16 gallons per minute in each chamber of the box, not to exceed 20 gallons per minute.

(ii) Each chamber of the recovery box must meet the following dimensions as measured from within the box:

(A) The inside length measurement must be at or within 39-1/2 inches to 48 inches;

(B) The inside width measurements must be at or within 8 to 10 inches; and

(b) When fishing in Grays Harbor Areas 2A and 2D, all steelhead and wild (unmarked) Chinook must be placed in an operating recovery box which meets the requirements in (a) of this subsection prior to being released to the river/bay as set forth in (d) of this subsection.

(c) When fishing in Grays Harbor Area 2C, all steelhead must be placed in an operating recovery box which meets the requirements in (a) of this subsection prior to being released to the river/bay as set forth in (d) of this subsection.

(d) All fish placed in recovery boxes must remain until they are not lethargic and not bleeding and must be released to the river or bay prior to landing or docking.

(e) For Areas 2A and 2D, soak time must not exceed 45 minutes. Soak time is defined as the time elapsed from when the first of the gillnet web is deployed into the water until the gillnet web is fully retrieved from the water.

(4) Retention of any species other than coho, chum, hatchery Chinook marked by a healed scar at the site of the adipose fin, or shad is prohibited in Areas 2A and 2D from October 1 through November 30.

(5) Retention of any species other than Chinook, chum, coho or shad, is prohibited in Area 2C from October 1 through November 30.

(6) Quick reporting is required for original receivers. According to WAC 220-352-320, reports must be made by 10:00 a.m. the day following landing, unless otherwise specified in an electronic fish receiving ticket reporting agreement (see WAC 220-352-035(3)).

(7) Report all encounters of green sturgeon to the quick reporting office via phone at 866-791-1280, fax at 360-249-1229, or email at harborfishtickets@dfw.wa.gov. Fishers may have wholesale fish buyers use the "buyer only" portion of the fish ticket and include encounters with each day's quick reporting.

(8) Do NOT remove tags from white or green sturgeon. Please obtain available information from tags without removing tags. Submit tag information to:

Washington Department of Fish and Wildlife

48 Devonshire Rd.

Montesano, WA 98563.

(9)(a) Fishers must take department observers, if requested, by department staff when participating in these openings.

(b) Fishers also must provide notice of intent to participate by contacting Quick Reporting by phone, fax or email. Notice of intent must be given prior to ((12:00))5:00 p.m. on October ((9))11, for openings in Areas 2A, 2C, or 2D.

(10) It is unlawful to fish for salmon with tangle net or gillnet gear in Areas 2A and 2D unless the vessel operator has attended a "Fish Friendly" best fishing practices workshop and has in his or her possession a department-issued certification card.